A.C. Smith, center, arrives for a hearing at the county courthouse in Montgomery, Ala. on Thursday March 24, 2016. Montgomery Police Officer A.C. Smith has been charged with murder in the shooting death of Greg Gunn.(Photo: Mickey Welsh / Advertiser)Buy Photo

Whether or not a trial will be held for the Montgomery police officer charged with the murder of Greg Gunn — a 58-year-old black man lethally shot steps from his home in February 2016 — will be decided at an immunity hearing on July 26.

The purpose of the immunity hearing is to determine whether or not MPD officer Aaron "Cody" Smith was justified in his deadly use of force against Gunn.

If Smith is found not to be immune from prosecution, the trial is scheduled to begin Aug. 13.

The immunity hearing was initially scheduled for Aug. 9 but was rescheduled on June 6. Neither Smith’s defense attorney Mickey McDermott nor Montgomery County District Attorney Daryl Bailey could say why it was changed.

McDermott said there are several ways an immunity hearing can proceed: The judge can elicit oral pleadings from both parties with the defense going first; listen solely to the attorneys; review evidence that includes live witnesses; or hear solely from Smith.

"The burden is solely on the defendant to convince the trial court that his or her actions were justified under Alabama Code 13A-2-23 (which reads), 'A person is justified in using physical force upon another person in order to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by that other person,'" McDermott said, adding that witnesses have been subpoenaed for the immunity hearing.

Smith shot Gunn sometime after 3 a.m. on Feb. 25, 2016. Gunn, who neighbors said was walking home from a card game, was stopped by Smith, who didn't turn on his police lights or body cam, according to preliminary hearing testimony by State Bureau of Investigation agent Jason DiNunzio, who interviewed Smith once 3 1/2 hours after the shooting and again six days later.

After reportedly putting his hands on Smith’s vehicle and submitting to a pat-down, Gunn fled and Smith chased him 50 to 75 yards down McElvy Street, according to the testimony. DiNunzio said Smith attempted to radio for backup but was unsuccessful due to the channel being occupied. The chase ended with Smith tasing Gunn three times, beating him with a metal baton and eventually shooting Gunn five times. According to Smith testimony recounted by DiNunzio, Gunn picked up a wooden paint roller stick prior to the shooting. That is in dispute, however, as no fingerprints were found on the wooden painter’s stick, according to DiNunzio..

Smith never had charges against Gunn at any point during the stop, Dinunzio said in court.

"Usually those (weapons) are used in a lawful arrest, which Smith didn't have," DiNunzio said after earlier saying it was not illegal to run from police.

Broken glass was found among Gunn's possessions. McDermott alleged after the preliminary hearing that Gunn was under the influence and the defense has filed a motion for discovery requesting a toxicology report and fingerprints from the broken glass.

"Why these stun guns — which can stop any grown man — did not stop him, I imagine when we get the toxicology reports back from Mr. Gunn, that question will be easily answered," McDermott said after the preliminary hearing.

Smith's defense has filed several motions for discovery recently for SBI policies and procedures, specifically the witness interrogation policy. Motions have also been filed for the results of forensic testing on the paint pole found at the scene, dashcam footage from police car 4797 from Feb. 24-25, the ballistics report of the weapon used by Smith and rounds removed from Gunn and the recovered round not fired by Smith’s gun.

Smith used his body camera twice prior to stopping Gunn that night. The previous week, Smith had tackled a suspect with a gun. Smith told DiNunzio “he didn’t want to do that again.”

Montgomery County Circuit Judge Greg Griffin is the fourth judge to preside over the case after three previous judges recused themselves. Smith’s defense attempted to force Griffin to recuse himself after Griffin complained on social media about being stopped by a Montgomery police officer while Griffin was out walking.

Griffin posted on Facebook that “the only thing I was guilty of was being a black man walking down the street in his neighborhood ...”

Smith’s defense attempted to use that as evidence that Griffin can’t impartially weigh on a case in which a white officer shot a black man. The motion for recusal was denied by both Griffin and the Court of Appeals before being denied by the Alabama Supreme Court in February.

Smith was placed on paid administrative leave following his March 2016 arrest.

In January, the Montgomery Advertiser filed a public records request with the city of Montgomery for the names, ranks and salaries of all Montgomery Police Department employees on paid and unpaid leave. The city denied the request. In February, the Advertiser requested the number of Montgomery police officers currently on administrative leave. MPD declined to provide the number.